A lawyer for Rep. Madison Cawthorn (R-NC) cited an 1872 congressional action granting amnesty to Confederate soldiers to defend his own client’s eligibility for office.
The argument from Cawthorn lawyer James Bopp Jr. came in response to a legal effort to have Cawthorn declared ineligible for office because he allegedly “encouraged, and upon reasonable suspicion helped aid, the insurrection” on Jan. 6.
The legal challenge, from a group of North Carolina voters backed by the organization Free Speech For People, alleges that Cawthorn violated the third section of the 14th Amendment, which states, “No Person shall be a […] Representative in Congress […] who, having previously taken an oath, as a member of Congress […] to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”
On the phone with TPM Wednesday, Bopp said “there are substantial constitutional defenses, which include the fact that Congress passed the 1872 Amnesty Act, which removed all persons whatsoever from the disability under Section 3 as a result of engaging in an insurrection or rebellion.”
Though the Amnesty Act applied at the time to Confederate soldiers who fought in the Civil War, nothing in the law prevented it from being applied in the future, Bopp argued.
“There’s nothing in the Amnesty Act that says it’s only applicable to the Civil War, and it was very broad in its terms,” he said.
Ron Fein, legal director for Free Speech For People, told TPM in a statement that “Mr. Bopp’s argument is contradicted by history and common sense.”
“In the congressional debates leading up to the 14th amendment, Congress considered but rejected a draft of section 3 that only applied to ‘the late insurrection,’ i.e., the Civil War; in other words, Congress explicitly wrote section 3 to apply to future insurrections,” Fein said. “In the entire public and congressional debate leading to the 1872 amnesty, no one ever mentioned Mr. Bopp’s idea of future amnesty for insurrectionists who hadn’t even been born yet.”
“If Congress had intended through the 1872 amnesty to enact a de facto repeal of a constitutional amendment that it had just passed, you would have expected someone to have mentioned this at the time,” he added. Bopp first commented about the Amnesty Act to The New York Times Tuesday.
A Bid To Disqualify Right-Wing Reps
Free Speech for People has made no secret of the fact that it plans on challenging the eligibility of other members of Congress.
But North Carolina law is especially useful for challengers of Cawthorn’s eligibility: It puts the burden on candidates to demonstrate, “by a preponderance of the evidence of the record as a whole that he or she is qualified to be a candidate for the office.” (For now, the challenge to Cawthorn’s eligibility has been delayed by the legal fight over redistricting in the state.)
The challengers noted that Cawthorn was reportedly in touch with event planners behind the Jan. 6 White House rally, which preceded the attack on Congress. He also encouraged attendees at one December 2020 speech to “lightly threaten” their congressional representatives. Two days before the Capitol attack, he tweeted that the fate of the country hinged “on the actions of a solitary few.”
“Get ready, the fate of a nation rests on our shoulders, yours and mine,” Cawthorn wrote. “Let’s show Washington that our backbones are made of steel and titanium. It’s time to fight.”
On Jan. 6 itself, Cawthorn spoke to the crowd at the White House event that preceded the riot.
“The Democrats, with all the fraud they have done this election, the Republicans, hiding and not fighting, they are trying to silence your voice,” he said, after observing that “this crowd has some fight.”
After the attack began, but before insurrectionists breached the Capitol building itself, Cawthorn tweeted, “I’m fighting a battle for our Constitution on the house floor with other patriots. The battle is on the house floor, not in the streets of D.C.”
Insurrectionist Under Law?
Bopp argued to TPM that these actions did not amount to partaking in an insurrection. The 14th Amendment’s use of “engaged” to define participation in an insurrection did not apply here, he said.
He accused Cawthorn’s challengers of “weaponizing” what occurred on Jan. 6 “to subvert our democracy by preventing qualified people from running for office.”
“It wasn’t an insurrection, it wasn’t a rebellion by any sensible definition of those words, and Cawthorn was on the floor of Congress when it occurred doing his official duties, so he wasn’t ‘engaged’ in any of it,” he said.
The challenge may be a bit of a longshot, as several legal observers have acknowledged, but it could also force Cawthorn to speak more about what role he had, if any, in organizing some part of the Jan. 6 event schedule.
“If it turns out that there are proper procedures lawfully being employed that result in a deposition, he’ll deal with that when that occurs,” Bopp said. But, he added, “I seriously doubt that we’ll get to that point.”